Allahabad High Court
Smt. Hemlata vs State Of U.P. And 6 Others on 5 October, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:192097 Court No. - 35 Case :- WRIT - A No. - 11378 of 2023 (Leading writ petition) Petitioner :- Smt. Hemlata Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Bheem Singh,Aalok Singh,Sr. Advocate Counsel for Respondent :- CSC,Adarsh Singh,Arvind Kumar Upadhyay,Indra Raj Singh,Krishna Kumar Chand,Sankalp Narain,Srivats Narain Connected with Case :- WRIT - A No. - 3482 of 2023 (Connected writ petition) Petitioner :- Smt. Hemlata Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Bheem Singh,Aalok Singh Counsel for Respondent :- C.S.C.,Adarsh Singh,Arvind Kumar Upadhyay,Atul Tej Kulshrestha,Indra Raj Singh,Krishna Kumar Chand,Ravi Anand Agarwal,Sankalp Narain,Shreya Gupta,Srivats Narain Hon'ble Vikas Budhwar,J.
1. Heard Sri Bheem Singh, learned counsel for the writ petitioner in the leading and the connected writ petitions, Sri J.N. Maurya, learned Additional Chief Standing Counsel along with Sri Shailendra Singh, learned Standing Counsel for the respondents 1, 3, 4, 5, & 6, Sri K.K. Chand has accepted notice on behalf of the second respondent in both the writ petitions, Sri Atul Tej Kulshrestha for the Authorised Controller manning the sixth respondent institution and Sri Indraj Singh, along with Sri Arvind Kumar Upadhyay, who appears for the 7th respondent in the leading writ petition and 8th respondent in the connected writ petition, Dr. Manisha Agarwal.
2. Since common questions of law and facts are involved in both the writ petitions thus, they are being taken together and decided by a common judgement.
3. A joint statement has been made by the learned counsel for the rival parties that they do not propose to file any further affidavits thus with their consent the writ petitions are being decided at the fresh stage.
4. The case of the writ petitioner, Smt. Hemlata is that the sixth respondent, the Committee of Management, in Champa Agarwal Kanya Inter College, Aligarh is an institution recognised under the provisions of U.P. Intermediate Education Act, 1921, the provisions of U.P. Act 5 No.1982 and the U.P. Act No.24 of 1971 stands applicable.
5. As per the writ petitioner she had passed out High School as well as Intermediate examinations from U.P. Board and she has also completed B.Sc. and holds Masters Degree in Sociology with the 55% and Masters Degree in Hindi with 62% and in Sanskrit with 53% and M.Sc. Chemistry with 55%.
6. The writ petitioner claims to have been selected as an Assistant Teacher L.T. Grade by the U.P. Secondary Education Service Selection Board, Prayagraj in the year 2006 and she was assigned her first placement in the institution namely, S.K. Inter College, Jalali, District Aligarh and she assumed the charge on 5.9.2008. According to the writ petitioner she was transferred to the sixth respondent institution and was promoted on the post of Lecturer (Sociology) on 18.6.2018.
7. It is the case of the writ petitioner that one Smt. Pramila Saraswat, who was appointed as a Principal of the institution in question superannuated on 30.6.2007 after attaining the age of superannuation giving a room for a vacancy to be filled either by the regular incumbent or by officiation/ad hoc basis. It is the further case of the writ petitioner that one Smt. Reeta Agarwal who was allowed to officiate as ad hoc Principal superannuated on 31.3.2019 and thereafter the writ petitioner claiming herself to be the Senior most Lecturer was allowed to officiate under the order of Authorised Controller of the sixth respondent institution on 3.4.2019 as the Principal and signature stood attested by the District Inspector of Schools, Aligarh on 25.4.2019. As per the writ petitioner vide order dated 17.9.2019 the District Inspector of Schools, Aligarh proceeded to grant entitlement and the benefits as an Officiating Principal.
8. In para 14 of the writ petition assertion has been made to the extent that the Authorised Controller of the sixth respondent institution proceeded to send a requisition to the Board for filling up the regular vacancy arising on account of the retirement of the permanent Principal on 29.6.2019.
9. It is also the case of the writ petitioner that the Authorised Controller manning the sixth respondent institution proceeded to issue a no objection certificate in favour of one Dr. Radha Bharatdwaj, Principal Maharaja Agrasen Girls Inter College, Mathura according permission to join on the post of Principal of the sixth respondent institution. It is the further the case of the writ petitioner that NOC has also been granted to Dr. Radha Bharatdwaj by the institution whereat she was posted. Faced with the circumstances that already the post in question stood requisitioned thus there was no occasion to make recruitment by way of transfer, the writ petitioner represented the matter before the District Inspector of Schools, Aligarh on 28.1.2023. However, according to the writ petitioner on 3.2.2023 the District Inspector of Schools Aligarh proceeded to issue a communication to the Joint Director of Education, Aligarh Mandal Aligarh whereby it is sought to recommend the name of seventh respondent in the leading writ petition and the eighth respondent in the connected writ petition, Dr. Manisha Agarwal for being transferred and posted in the sixth respondent institution as the Principal.
10. Questioning the communication dated 3.2.2023 issued under the signature of the District Inspector of Schools Aligarh, the writ petitioner preferred the connected writ petition. The said writ petition came to be entertained by this Court on 24.2.2023 wherein the following order was passed:
The petitioner has preferred present writ petition inter-alia with the following prayers:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 03/02/2023 passed by the respondent no.-5 i.e. the District Inspector of Schools, Aligarh (filed as Annexure No.-9 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus restraining the respondents from filling up the post of Principal of the institution in question by way of transfer."
It is argued by counsel for the petitioner that respondents are trying to post one Dr. Manisha Agrawal by way of transfer on the post of Principal in the institution of the petitioner in which he is working on the post of Officiating Principal. In paragraph 13 of the writ petition it is stated that in order to fill up the post of Principal on regular basis the requisition has already been sent by the authorized controller to the respondent-Board on 29.06.2019, copy of the same is appended as annexure 3 to the writ petition.
Shri Bheem Singh, learned counsel for the petitioner placed reliance upon an order passed in Writ A No.10214 of 2022 (Uma Shanker Singh Vs. State of U.P. and 3 others) dated 22.08.2022. The order dated 22.08.2022 reads as follows:-
"Heard Sri Kailash Singh Kushwaha learned counsel for the petitioner, Sri Ashok Khare learned Senior Advocate assisted by Sri Gopal Ji Rai learned counsel for respondent No. 4, Sri Kushmondeya Shahi learned counsel for respondent No. 2 and the learned Standing Counsel for the State respondents.
Relying heavily on a division bench decision of this Court in Hari Pal Singh Vs. State of U.P. and 10 Others, 2016(8) ADJ 622, it has been submitted, once requisition had been made and action under Rule 11 completed, there survived no occasion or jurisdiction or authority with the Committee of Management to seek to make appointment on the post of Principal of the institution through transfer contrary to recruitment through direct recruitment already requisitioned by the District Inspector of Schools.
Prima facie, submission advanced by learned counsel for the petitioner appears to be correct.
Let counter affidavit be filed within a period of three weeks. Rejoinder affidavit may be filed within a week thereafter.
List on 10.10.2022.
Till the next date of listing, effect and operation of the impugned order dated 25.5.2022 shall remain stayed.
Any appointment made through direct recruitment in the meanwhile would remain subject to final outcome of the writ petition."
Heard counsel for the parties and perused the record.
It appears from perusal of the record that an order was passed by the respondent no.5 to transfer the respondent no.8 in the petitioner's institution on the post of Principal. Once requisition has been made and action under Rule 11 completed, there survived no occasion or jurisdiction or authority with the Committee of Management to seek to make appointment on the post of Principal of the institution through transfer.
Learned Standing Counsel has accepted notice on behalf of respondent nos.1, 3, 4 & 5. Mr. K. K. Chand, learned counsel, has accepted notice on behalf of respondent no.2.
Issue notice to respondents no.6, 7 & 8 returnable at an early date. Steps be taken within a week.
Counter affidavit be filed by all the respondents within four weeks. Rejoinder affidavit may be filed within two weeks' thereafter.
List this case in the week commencing 08.05.2023. Till the next date of listing, effect and operation of the impugned order dated 03.02.2023 passed by the respondent no.5 shall remain stayed.
Any appointment made through direct recruitment in the meanwhile would remain subject to final outcome of the writ petition."
11. Being aggrieved against the order dated 24.2.2023 passed in the connected writ petition Dr. Manisha Agarwal preferred Special Leave to Appeal (C) No (S) 7413 of 2023 before the Hon'ble Apex Court wherein on 8.5.2023 the following order was passed:-
"UPON hearing the counsel the Court made the following:-
ORDER
1. Since this petition arises out of interlocutory order, we are not inclined to entertain this special leave petition.
2. The special leave petition is dismissed accordingly.
3. We request the High Court to request to decide the appeal as expeditiously as possible.
3. Pending application(s), if any, stand (s) disposed of."
12. On being noticed the counsel representing the Dr. Manisha Agarwal filed an affidavit bringing on record the fact the requisition stated to be sent by the sixth respondent institution in question on 29.6.2019 has been withdrawn on 16.1.2023.
13. Thereafter, the writ petitioner herein, preferred the leading writ petition. In the leading writ petition the writ petitioner not only challenged the order dated 16.1.2023 withdrawing the requisition dated 29.6.2019 but also the order dated 30.6.2023 whereby the seventh respondent, (Dr. Manisha Agarwal) had been granted placement and transferred to the post of Principal in the sixth respondent institution.
14. The leading writ petition got tagged with the connected writ petition on 18.7.2023. The orders passed in leading as well as connected writ petitions on 18.7.2023 are quoted herein under:-
On Leading Writ Petition:
"Put up this case on 2nd August, 2023 at 2.00 p.m. Since a detailed order has been passed in Writ-A No.3482 of 2023 which is connected with the present writ petition thus, as suggested by Sri V.K. Singh, Senior Advocate for the seventh respondent, the seventh respondent has not been accorded joining in the institution in question. Thus, the arrangement with regard to the continuance of the writ petitioner as Officiating Principal in the institution in question may be continued till the next date of listing so as to avoid any further complications in the matter.
In view of the aforesaid, status quo as on date shall be maintained till the next date of listing.
Learned Standing Counsel appears for respondents no. 1 and 5.
Steps to be taken upon the sixth respondent within three days by Dasti.
Since in Writ-A No.3482 of 2023 there is an office report that despite service upon the sixth respondent nobody had put in appearance thus as precautionary measure the learned Standing Counsel shall inform the sixth respondent about the factum of filing and pendency of the writ petition and file affidavit before the next date about service upon the sixth respondent. In the wake of the fact that the Writ-A No.3482 of 2023 is Supreme Court expedited matter.
In the meantime the respondents shall file their response. "
On connected writ petition:-
"Sri Ashok Khare, learned Senior Counsel assisted by Sri Bheem Singh, in support of the writ petitioner, Smt. Hemlata, wife of Shri Manveer Singh, has sought to argue that the fifth respondent, District Inspector of Schools, Aligarh by virtue of a communication addressed to the fourth respondent, Joint Director of Education, Aligarh Region, Aligarh dated 3.2.2023 has proceeded to pass the order in question recommending the name of the eighth respondent in the leading writ petition, (Dr. Manisha Agrawal) for being accorded joining as the Principal in the sixth respondent institution, Champa Agrawal Kanya Inter College, Aligarh.The said order was challenged in Writ-A No.3482 of 2023.
In the said writ petition an interim order was passed by this Court on 24.2.2023 which is quoted hereunder:-
The petitioner has preferred present writ petition inter-alia with the following prayers :-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 03/02/2023 passed by the respondent no.-5 i.e. the District Inspector of Schools, Aligarh (filed as Annexure No.-9 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus restraining the respondents from filling up the post of Principal of the institution in question by way of transfer."
It is argued by counsel for the petitioner that respondents are trying to post one Dr. Manisha Agrawal by way of transfer on the post of Principal in the institution of the petitioner in which he is working on the post of Officiating Principal. In paragraph 13 of the writ petition it is stated that in order to fill up the post of Principal on regular basis the requisition has already been sent by the authorized controller to the respondent-Board on 29.06.2019, copy of the same is appended as annexure 3 to the writ petition.
Shri Bheem Singh, learned counsel for the petitioner placed reliance upon an order passed in Writ A No.10214 of 2022 (Uma Shanker Singh Vs. State of U.P. and 3 others) dated 22.08.2022.
The order dated 22.08.2022 reads as follows:-
"Heard Sri Kailash Singh Kushwaha learned counsel for the petitioner, Sri Ashok Khare learned Senior Advocate assisted by Sri Gopal Ji Rai learned counsel for respondent No. 4, Sri Kushmondeya Shahi learned counsel for respondent No. 2 and the learned Standing Counsel for the State respondents.
Relying heavily on a division bench decision of this Court in Hari Pal Singh Vs. State of U.P. and 10 Others, 2016(8) ADJ 622, it has been submitted, once requisition had been made and action under Rule 11 completed, there survived no occasion or jurisdiction or authority with the Committee of Management to seek to make appointment on the post of Principal of the institution through transfer contrary to recruitment through direct recruitment already requisitioned by the District Inspector of Schools.
Prima facie, submission advanced by learned counsel for the petitioner appears to be correct.
Let counter affidavit be filed within a period of three weeks. Rejoinder affidavit may be filed within a week thereafter.
List on 10.10.2022.
Till the next date of listing, effect and operation of the impugned order dated 25.5.2022 shall remain stayed.
Any appointment made through direct recruitment in the meanwhile would remain subject to final outcome of the writ petition."
Heard counsel for the parties and perused the record.
It appears from perusal of the record that an order was passed by the respondent no.5 to transfer the respondent no.8 in the petitioner's institution on the post of Principal. Once requisition has been made and action under Rule 11 completed, there survived no occasion or jurisdiction or authority with the Committee of Management to seek to make appointment on the post of Principal of the institution through transfer.
Learned Standing Counsel has accepted notice on behalf of respondent nos.1, 3, 4 & 5. Mr. K. K. Chand, learned counsel, has accepted notice on behalf of respondent no.2.
Issue notice to respondents no.6, 7 & 8 returnable at an early date. Steps be taken within a week.
Counter affidavit be filed by all the respondents within four weeks. Rejoinder affidavit may be filed within two weeks' thereafter.
List this case in the week commencing 08.05.2023. Till the next date of listing, effect and operation of the impugned order dated 03.02.2023 passed by the respondent no.5 shall remain stayed.
Any appointment made through direct recruitment in the meanwhile would remain subject to final outcome of the writ petition."
The eighth respondent in the leading writ petition preferred a Special Leave to Appeal (C) No(s). 7413 of 2023 before the Hon'ble Apex Court in which on 8.5.2023 the following order was passed:
"1. Since this petition arises out of interlocutory order, we are not inclined to entertain this special leave petition.
2. The special leave petition is dismissed accordingly.
3. We request the High Court to decide the appeal as expeditiously as possible.
3. Pending application (s), if any, stand(s) disposed of."
As per the order sheet of the leading writ petition the interim order was extended on 8.5.2023 wherein the following order was passed:-
"List after six weeks.
Interim order, if any, shall continue to operate."
Pursuant to the aforesaid order steps were taken upon respondents 6 to 8 and there is an office report dated 6.5.2023 that serve upon respondents no. 6 to 8 has been confirmed.
When the matter was taken up on 3.7.2023 then Sri Sankalp Narayan Singh, who appears for the eighth respondent had produced before this Court the transfer order dated 30.6.2023 transferring the eighth respondent in the sixth respondent institution and this Court thereafter passed the following order:
"This matter has been printed under the caption Hon'ble the Supreme Court order (expedited cases).
Sri Sankalp Narayan Singh, learned counsel, who appears for the 8th respondent in the writ petition, has forwarded a copy of a press publication dated 30.6.2023 so as to contend that the writ petition has virtually become infructuous as now nothing survives to be further proceeded with the relief so claimed in the writ petition.
Sri Bheem Singh on the other hand, who appears for the writ petitioners, has sought adjournment on the ground that he shall obtain instructions from his client as to whether he seeks to proceed with the writ petition as it is or file an amendment application/fresh writ petition in that regard.
On the request of the learned counsel for the parties, the matter is adjourned for the day.
Put up this case on 12th July, 2023 as unlisted with a clear understanding that the matter would be heard and argued on that date. The copy of the press publication dated 30.6.2023 has already been served upon Sri Bheem Singh and a copy so produced before this Court is retained on the record and marked as Exhibit-A."
On 12.7.2013 this Court proceeded to pass an order which is quoted hereunder:-
"Today when the matter has been taken up, Sri Bheem Singh, learned counsel for the petitioner has made a statement at bar that challenging the order dated 30.6.2023 as noted in the previous order dated 3.7.2023, he has preferred writ petition which is to come on next Monday.
Put up this case on 17.7.2023 in the additional cause list."
Challenging the transfer order dated 30.6.2023 transferring the eighth respondent in the sixth respondent institution as the Principal as well as the document appended at page 61 of the paper book annexure-13 in Writ Petition No.11378 of 2023 relevant assertions made in paragraph 26 of the writ petition, it has been sought to be submitted that the District Inspector of Schools, Aligarh fifth respondent has made a noting that on account of certain error the requisition notifying the vacancies has been cancelled on 16.1.2023. This order has been put to challenge in Writ Petition No.11378 of 2023.
Sri Khare has sought to argue while inferring from page 54 of the paper book in Writ Petition No.11378 of 2023 which happens to be the communication issued by the second respondent, Secretary U.P. Secondary Education Services Selection Board, Prayagraj addressed to the fifth respondent, District Inspector of Schools, Aligarh so as to contend that the vacancy stood notified earlier on 5.11.2019 which even in fact had been cancelled on 16.1.2013 however on date when the entire exercise of transfer was being sought to be undertaken with regard to the Dr. Manisha Agrawal there was already a vacancy notified and the petitioner was completely unaware about the reasons and the date on which it was put to notice board or in the website with regard to the cancellation of the said notification. He further submits that there cannot be any reason for cancellation except the reason that there is no vacancy available in the institution in question.
Sri V.K.Singh, assisted by Sri Sankalp Narayan on the other hand submits that the said excuse is not available to the petitioner particularly when on 16.1.2023 the notification itself have been cancelled and prior to filing of the writ petition and obtaining interim order in the Writ-A No.3482 of 2023, the writ petition was aware about the same. Even according to him it is highly unbelievable that the petitioner who is officiating Principal would not be aware about the fact that the notification stood cancelled as he was also manning the institution in question in the capacity of officiating Principal.
Sri V.K.Singh, assisted by Sri Sankalp Narayan however could not dispute the fact that the eighth respondent has not been accorded joining in the institution in question. However, according to the same, they would be filing their response in both the writ petitions bringing on record each and every aspect of the matter. They seek time to file response.
Sri P.K. Shahi, learned Standing Counsel shall also file an affidavit before the next date fixed clearly specifying the date on which the cancellation of the notification was put to notice that to in the website or elsewhere and further the reasons for cancellation of the same.
Since the leading petition is a Supreme Court expedited matter thus this Court is granting short indulgence till 1st August, 2023.
Put up this case along with the connected writ petition on 2nd August, 2023 at 2.00 p.m."
15. Pursuant to the notices issued to the respondents, a counter affidavit has been filed on behalf of the seventh respondent, Dr, Manisha Agarwal to which a rejoinder affidavit has been filed. A supplementary counter affidavit has been filed by the seventh respondent, Dr. Manisha Agarwal. In the connected writ petition a counter affidavit has been filed on behalf of Dr. Manisha Agarwal. A short counter affidavit has been filed by the Authorised Controller of the institution in question dated 6.8.2023 and the learned Standing Counsel has also filed the counter affidavit on behalf of respondents no. 3, 4 & 5 sworn by the Associate District Inspector of Schools, Aligarh dated 28.7.2023 to which rejoinder affidavits have been filed. The written submissions have also been submitted by the parties which are also available on record
16. Since statements have been made by the learned counsel for the parties that they do not propose to file any further response thus, this court is proceeding with the matter.
17. Sri Bheem Singh, learned counsel for the writ petitioner while assailing the orders impugned in the writ petitions has sought to submit that the impugned orders cannot be sustained for even a single moment particularly in view of the fact that once a requisition had been sent by the Committee of Management of the institution in question on 29.6.2019 then in view of the law laid down in the case of Hari Pal Singh vs. State of U.P. 2016(8) ADJ 622 the requisition could not have been withdrawn or cancelled as it is not the case wherein there was no post available as according to the learned counsel for the writ petitioner the requisition was sent for the post of Principal which by all eventualities stood created, sanctioned and was vacant in the institution in question. He thus submits that even otherwise the order dated 16.1.2023 is not an order but it presence finds place in a communication of the second respondent, Secretary, U.P. Secondary Education Service Selection Board, Prayagraj whereby this much has been mentioned that the requisition had been cancelled.
18. Learned counsel for the writ petitioner further seeks to invite the attention of the court towards annexure-13 and page 61 of the paper book of the leading writ petition so as to contend that this much has only been incorporated in the said chart which is in a form of an order "Final Rejected by D.I.O.S. Reason: izsf"kr vf/k;kpu esa vU; dksbZ =qfV gksus ds dkj.k Reject Date:16-01-2023 12:11:06.
19. He thus submits that the said reason cannot be a valid ground or premise so as to grant a licence to the institution in question to fill the post of Principal through mode of transfer.
20. Learned counsel for the writ petitioner has also invited the attention of the Court towards paragraph no.22 of the writ petition so as to further contend that Dr. Manisha Agarwal according to the writ petitioner is the sister of Joint Director of Education, Aligarh Region, Aligarh and thus everything has been tailored in such a manner so as to confer benefit upon her.
21. Learned counsel for the writ petitioner has further argued that large scale manipulation have been done particularly in view of the fact that on 28.4.2021 the District Inspector of Schools, Aligarh had corresponded with the Secretary, U.P. Secondary Education Selection Board, Prayagraj whereby owing to be occurring of a substantive vacancy on the post of Principal consequent to the retirement of Pramila Sarswat on 30.6.2007 proceedings were undertaken for transfer of Dr. Radha Bharadwaj, Principal of Maharaja Agrasen Girls Inter College. He further submits that thereafter on 9.1.2023 the Authorised Controller of sixth respondent corresponded with the District Inspector of Schools, Aligarh and the second respondent, Secretary of the Board that since the post in question has not been advertised and Dr. Manisha Agarwal at present is working in Kaushlya Girl;s Inter College Deputyganj, Moradabad and she has submitted an application on 26.12.2022 owing to certain family problems for being transferred to the sixth respondent institution thus, the requisition be cancelled.
22. It is the further submission of the learned counsel for the writ petitioner that on 10.1.2023 the District Inspector of Schools, Aligarh again corresponded with the Board wherein it was recited that the institution in question had requested for the cancellation of the requisition. According to the learned counsel for the writ petitioner the entire exercise is per se legal just in order to accommodate Dr. Manisha Agarwal. He further submits that once the requisition has been sent then there was no occasion to have proceeded for mode of transfer. He seeks to rely upon the Full Bench judgement in the case of Prashant Kumar Katiyar vs. State of U.P. 2013 (1) ESC 221 which has been followed in the case of Hari Pal Singh (Supra) and he also seeks to draw attention of the Court towards the judgement in the case of Kiran Katiyar vs. State of U.P., Writ-A No.8512 of 2022 decided on 9.9.2022.
23. Sri Indra Raj Singh who appears for Dr. Manisha Agarwal, on the other hand while countering the submission of the writ petitioner submits that the writ petitioner has no locus standi to maintain the present proceedings though by virtue of judicial verdict an Ad hoc/Officiating Lecturer might have the locus to resist the transfer of a regularly selected Principal on certain grounds but in the present case in hand since the writ petitioner is not eligible and qualified to officiate on the post of Principal of the institution in question. Thus writ petition would not be maintainable.
24. Learned counsel for Dr. Manisha Agarwal, in this regard has invited the attention towards the counter affidavit filed by its so as to contend that it is not in dispute that the vacancy on the post of Principal fell vacant on 30.6.2007 consequent to retirement of Smt. Pramila Saraswat and as per the writ petitioner she was selected and appointed as Assistant Teacher L.T. Grade on 5.9.2008 and was accorded promotion on the post of Lecturer (Sociology) on 18.6.2018 thus on the date of arising of the vacancy and sending of requisition the writ petitioner was not qualified, for being accorded officiation.
25. Learned counsel for Dr. Manisha Agarwal, in order to buttress the submission has sought to rely upon the judgement in the case of Nand Kishore Prasad vs. U.P. Secondary Education Service Commission reported in 1990 (1) UPLBEC 539, Shyam Lal and others vs. State of U.P. 2011 (4) UPLBEC 268 and Jagdish Prasad Pandey vs. State of U.P. 2011 (4) UPLBEC 2884.
26. It is the further submission of Sri Singh, who appears for Dr. Manisha Agarwal that even in view of the note appended to Rule 12 of the 1998 Rules four years of experience as a Lecturer or as Head Master of the High School is a essential requirement which is to be fulfilled and since the writ petitioner does not possess the said qualification she cannot be allowed to officiate on the post in question. He seeks to rely upon the judgement in the case of Balbir Kaur vs. U.P. Secondary Education Service Selection Board 2008 (3) UPLBEC 2376.
27. Learned counsel for Dr. Manisha Agarwal has also relied upon a decision in the case of Praveena Yadav vs. State of U.P. 2011 (3) UPLBEC 2419 so as to contend that even for the purposes of officiation or being posted on ad hoc basis as a Principal the essential qualification to be possessed for Regular Principal is required as there is no distinction with regard to the essential qualification of regular Principal and Officiating/Ad hoc Principal.
28. Reliance has also been placed upon the decision of a Full Bench in the case of Smt. Sadhna vs. State of U.P. 2017 (3) ESC 1275 so as to further contend that the eligibility is to be seen on date of the occurrence of the vacancy.
29. Sri Singh, learned counsel for Dr. Manisha Agarwal has further argued that the judgement in the case of Prashant Kumar Katiyar (Supra) and Hari Pal Singh (Supra) will not be of any aid or assistance to the writ petitioner particularly in view of the notification issued by the Principal Secretary, State of U.P. addressed to the Director of Education Madhyamik, Lucknow dated 27.1.2020 as according to him Clause 12 only prohibits and puts a restrictions for filling up the post through mode of transfer when the post is advertised and once only requisition has been sent then it would not be a ground to forestall the proceedings of transfer.
30. Lastly it has been submitted by Sri Indra Raj Singh for Dr. Manisha Agarwal that the allegations contained in the writ petition that Dr. Manisha Agarwal is related to the Joint Director of Education Aligarh Region, Aligarh is patently false and incorrect as she is nowhere related to the Joint Director of Education Aligarh Region, Aligarh. It is the further submission of the learned counsel for Dr. Manisha Agarwal that on all counts the writ petitioner cannot resist the transfer of Dr. Manisha Agarwal to the institution in question.
31. Sri J.N. Maurya, learned Chief Standing Counsel assisted Sri Shailendra Singh, learned Standing Counsel on the other hand submits that the writ petitioner is not entitled to any relief as once the post in question has not been advertised then it is always permissible to fill up the post of Principal through transfer. He seeks to rely upon the notification dated 27.1.2020 and according to him once the writ petitioner is not qualified and eligible then she cannot resist the transfer and one thing should be kept in mind that the writ petitioner has a right only to resist any appointment once she is clothed with eligibility and suitability in that regard.
32. It is further the submission of learned Additional Chief Standing Counsel that the notification dated 27.1.2020 has been issued in exercise of the provisions contained under Section 9(4) of the U.P. Intermediate Education Act, 1921 and the same in no manner whatsoever does violence with the provisions of the U.P. Intermediate Education Act, 1921 as it tends to facilitate achieving of object which is envisaged in the statute.
33. Submission is that it is always open for the State Government to take appropriate decision as to how and by which mode recruitment is to be made on the post of Principal and further transfer is also mode of recruitment and once a policy decision has been taken by the State Government that the mode of transfer is permissible until and unless the post is advertised, the writ petitioner cannot dictate his terms while coming up with the stand that once requisition has been sent mode of transfer cannot be resorted to. Lastly, he submits that once the requisition itself stands withdrawn/cancelled then the writ petitioner has no say in the matter.
34. Sri Atul Tej Kulshrestha learned counsel for the Authorised Controller on the other hand adopts the argument of the learned counsel for the respondents. He however submits that the writ petitioner has no right to continue as an Officiating Principal in that regard.
35. In rejoinder Sri Bheem Singh, learned counsel for the writ petitioner submits that there happens to be a notification dated 14th June, 2019 whereby an amendment has been sought to be made in Regulations 55, 56, 57, 58, 60, 61 of the Chapter III of the U.P. Intermediate Education Act, 1921, as according to him Regulations 59(3) itself provides a contingency that transfer can only be resorted till the vacancy has not been notified. He thus submits that the statutory regulations occupy the field and they will prevail over the Government Orders in that regard. According to him the contention so sought to be raised by the learned counsels for the respondents regarding his eligibility are not correct as according to him the writ petitioner is eligible to man the post in question and it is not open for the respondents to take a such a ground once approval have been accorded to the writ petitioner to officiate as a Principal in that regard.
36. It is the further submission of the learned counsel for the writ petitioner that the appointment of Dr. Manisha Agarwal is dated 1.4.2022 and thus she has not completed the probation period and she is also not entitled to be transferred to the post in question.
37. I have heard learned counsel for the parties and perused the record carefully.
38. The crucial question which arises for determination in the present case is whether the writ petitioner is entitled to continue to officiate as a Principal of the institution in question while resisting the claim of Dr. Manisha Agarwal to be transferred in the institution in question.
39. Though counter allegations have been levelled by the rival parties as on one hand the writ petitioner alleges that the entire action has been taken just in order to bestow undue benefits to Dr. Manisha Agarwal as prior to it when the writ petitioner was officiating an exercise was undertaken for transfer of Dr. Radha Bharatdwaj however owing to intimacy of Dr. Manisha Agarwal with the Joint Director of Education, she has been permitted to be transferred to the sixth respondent institution. It is further the allegation of the writ petitioner that there was no occasion to have cancelled the requisition as none of the grounds were available for cancellation, as the only ground on which the requisition could have been cancelled was that there was no post existing, as in the present case the post is of Principal which cannot be said to be non-existent. Apart from the same it is further the allegation of the writ petitioner that Dr. Manisha Agarwal procured her transfer while upsetting the claim of Dr. Radha Bharadwaj and in order to pave the way, the requisition was cancelled.
40. On the other hand the arguments of the learned counsels for the respondents are that the writ petitioner is not qualified and eligible to continue as an Officiating Principal and it always open for the Educational Authorities on the request of the Committee of Management to withdraw the requisition as barring the writ petitioner there was no other candidate who claims itself to be eligible though not senior to have staked its claim. It is the further stand of the respondents that in exercise of the powers as conferred under Section 9(4) of the U.P. Intermediate Education Act, 1921 a Government Order has been issued on 27.1.2020 whereby transfer has been made permissible until the post is advertised and here once the requisition stand withdrawn then there is no obstacle for transferring Dr. Manisha Agarwal.
41. Additionally it has been also argued that the issues when the writ petitioner are raising cannot be a ground to maintain the present petition as obviously this court cannot venture into in exercise which is purely academic once even otherwise the writ petitioner is not eligible in that regard.
42. This Court at this juncture required the learned counsel for the respondents in particular Sri J.N. Moaurya, learned Chief Standing Counsel to explain the import and impact of the notification dated 14.6.2019 amending the Regulations 55 to 61 of the Chapter III of the U.P. Intermediate Education Act, 1921 vis-a-vis the exercise of the powers under Section 9(4) of the U.P. Intermediate Education Act, 1921 while issuing Government Order dated 27.1.2020.
43. Sri J.N. Maurya, learned Additional Chief Standing Counsel has made a statement at bar after seeking instructions from its client that the issues which have been raised by the rival parties are to be addressed at the first instance by the Director of Education (Secondary Education) Directorate, U.P. at Prayagraj, he thus request that this Court may not in the present proceedings go into the said issues as according to him the Director of Education (Secondary Education) Directorate, U.P. at Prayagraj shall go deep into the issue and after careful consideration of the statutory scheme and the Government Orders in vogue shall pass a reasoned and a speaking order. He thus submits that the parties may appear before the Director of Education (Secondary Education) Directorate, U.P. at Prayagraj and raise all legal and factual issues which shall be dealt with most expedition in accordance with law.
44. To such a submission Sri Bheem Singh, learned counsel for the writ petitioner, Smt. Hemlata,, Sri Indraj Singh, along with Sri Arvind Kumar Upadhyay, for Dr. Manisha Agarwal, Sri K.K. Chand for U.P. Secondary Service Education Selection Board and Sri Atul Tej Kulshrestha for the Authorised Controller of the sixth respondent institution Champa Agarwal Kanya Inter College, Aligarh. have no objection however their anxiety is that the matter be decided within a time bound period after hearing the parties.
45. Since it is the stand of the rival parties that the matter be decided at the first instance by the eighth respondent, Director of Education (Secondary Education) Directorate, U.P. at Prayagraj, thus this Court is not addressing upon the merits of the matter leaving it open for the rival parties to approach the eighth respondent, Director of Education (Secondary Education) Directorate, U.P. at Prayagraj.
46. Accordingly, the writ petition is being decided on the following terms:(a) the writ petitioner and the seventh respondent in the leading writ petitioner and eighth respondent in the connected writ petition Dr. Manisha Agarwal as well as the Committee of Management, Champa Agarwal Kanya Inter College, Aligarh through its Manager/Authorised Controller shall appear along with their written version before the Director in the fourth week of October, 2023 (b) the version submitted by the parties shall be exchanged on the said date (c) a date shall be fixed in the week commencing 30.10. 2023, hearing be done on that date (d) the order be passed by Joint Director of Education, Aligarh Region, Aligarh by 15.11.2023 (e) the eighth respondent in the leading writ petition and nineth respondent in the connected writ petition, Director of Education (Secondary Education) Directorate, U.P. at Prayagraj, shall decide the issue bearing in mind the following fundamental and core aspects:-(i) the issue with regard to the transfer of Dr. Manisha Agarwal in the sixth respondent institution, Champa Agarwal Kanya Inter College, Aligarh (ii) the issue with regard to officiation of the writ petitioner, Smt. Hemlata as an Officiating Principal (iii) the transfer so effectuated of Dr. Manisha Agarwal on 30.6.2023 in the light of the Government Order dated 27.1.2020 and the amendments made by virtue of a notification dated 14.6.2019 (iv) the eligibility and the suitability of the writ petitioner to officiate as Principal in the institution in question (v) the import and the impact of the eligibility of the writ petitioner on the date of the occurrence of the vacancy consequent to the retirement of Smt. Pramila Saraswat on 30.6.2007, (vi) the issue with regard to withdrawal/cancellation of the requisition dated 29.6.2019 on 16.1.2023.
47. Since an interim protection has been accorded to the writ petitioner, Smt. Hemlata while entertaining the leading writ petition and on the basis whereof she is continuing as Officiating Principal of Champa Agarwal Kanya Inter College, Aligarh thus, her continuance shall be subject to the final orders to be passed by the Director of Education (Secondary Education) Directorate, U.P. at Prayagraj.
48. Since the matter stand remitted back to the Director of Education Secondary, Prayagraj thus it is expected that the Director of Education Secondary, Prayagraj shall pass a reasoned and speaking order dealing with all the conditions raised by the parties without being influenced or obsessed by any of the observations made herein above.
With the aforesaid observations, these writ petitions are disposed off.
Order Date :- 5.10.2023 piyush